Acting under dictation as a ground of judicial review
Acting Under Dictation as a Ground of Judicial Review
Overview
Acting under dictation is a ground of judicial review where a public authority or decision-maker improperly delegates or relinquishes their discretionary power to another person or entity and simply acts according to that other’s instructions or directions. This is considered unlawful because administrative discretion must be exercised independently, not under the control or dictation of an external party.
Why is Acting Under Dictation a Problem?
It breaches the principle of delegation of authority: Decision-makers must exercise their own judgment.
It undermines accountability and transparency.
It may lead to unlawful delegation or abdication of power.
The decision-maker becomes a mere “mouthpiece” for another person.
Legal Test for Acting Under Dictation
The courts assess whether the decision-maker genuinely exercised independent discretion or simply followed instructions from someone else without exercising their own judgment.
Important Case Law
1. Khawaja v Minister for Immigration and Ethnic Affairs (1987) 162 CLR 181 (Australia)
Facts: The Minister refused entry permits on the basis of adverse security advice.
Decision: The High Court held that the Minister must exercise independent judgment and cannot act solely on the advice or dictation of others.
Principle: The decision-maker must consider the advice but must not simply act as a “rubber stamp” or under dictation.
2. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (UK)
Facts: The Wednesbury Corporation imposed conditions on cinema licenses. The court reviewed the discretionary power exercised by the authority.
Decision: While the case is primarily about unreasonableness, it also implicitly affirms that discretion must be exercised independently.
Principle: Discretionary power cannot be exercised under dictation; the decision-maker must consider all relevant factors.
3. Bismag v Minister for Immigration and Ethnic Affairs (1990) 25 FCR 360
Facts: Alleged that the Minister’s delegate acted under dictation from another government department.
Decision: The court found the delegate must use independent judgment and cannot simply follow instructions without consideration.
Principle: Delegates cannot abdicate their decision-making responsibility by acting under dictation.
4. Conway v Rimmer [1968] AC 910 (UK)
Facts: The case involved the disclosure of documents and the exercise of discretion by a public official.
Decision: The House of Lords emphasized that discretion must be exercised by the decision-maker and not dictated by another.
Principle: Acting under dictation invalidates the exercise of discretion.
5. Durayappah v Fernando [1967] 2 AC 337 (UK)
Facts: Local council decisions were challenged on grounds of acting under dictation from the central government.
Decision: The Privy Council held that local authorities must exercise their own discretion and cannot act merely on central government dictation.
Principle: The unlawful delegation or dictation vitiates decisions.
6. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Facts: The High Court considered whether the Minister acted under dictation in refusing a visa based on adverse security assessments.
Decision: The Court reiterated that while advice can be considered, the Minister must independently evaluate and make the decision.
Principle: Independent decision-making is required; acting under dictation is a ground for judicial review.
Summary Table
| Case Name | Key Issue | Principle Established |
|---|---|---|
| Khawaja v Minister (1987) | Minister acting on advice | Must exercise independent judgment, not mere dictation |
| Associated Provincial Picture Houses (1948) | Independent discretion | Discretion cannot be dictated by others |
| Bismag v Minister (1990) | Delegate acting under dictation | Delegates must not abdicate decision-making |
| Conway v Rimmer (1968) | Disclosure discretion | Discretion must be exercised independently |
| Durayappah v Fernando (1967) | Local authority under dictation | Must exercise own discretion, not follow instructions blindly |
| Minister for Immigration v Yusuf (2001) | Security assessments | Minister must evaluate independently |
Conclusion
Acting under dictation undermines the essential principle that administrative decision-makers must exercise their own judgment. Courts scrutinize decisions to ensure that discretion is not fettered or improperly delegated, preserving the integrity of administrative decision-making.
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